New Australian legislation to block access to overseas websites which have the primary purpose of infringing copyright

The purpose of the Bill is to reduce online copyright infringement in response to a specific concern raised by copyright owners. The Bill awaits Royal ascent from Australia's Governor General before it will become law in Australia.

Once in force, the Copyright Act 1968 will be amended to empower the Federal Court of Australia to grant an injunction to require a carriage service provider[1] (“CSP”) to disable access to a website located outside Australia which infringes, or facilitates an infringement of, copyright, where the primary purpose of the website is to infringe, or facilitate the infringement of, copyright.

An injunction may be sought against the CSP by the copyright owner or its licensee.

The Court must be satisfied that the CSP provides access to a website operated outside Australia. Copyright owners currently have avenues to take direct action against a website operated within Australia.

The Explanatory Memorandum describes the “primary purpose” test as an intentionally high threshold for the copyright owner to meet. Examples are given of websites such as YouTube and Blogger as not prima facie satisfying the test as being a website that infringes or facilitates the infringement of copyright.

The scheme is deliberately prescriptive and it requires the Court to take a range of matters into account, including the flagrancy of the infringement, whether the operator of the online location demonstrates a disregard for copyright generally, and whether disabling access to the online location is proportionate response in the circumstances. However, the Court will of course have discretion as to which of these factors are to be considered and the appropriate weight to be placed on each factor.

We await with interest to see how this new provision is utilised by copyright owners.

[1]Telecommunications Act 1997: carriage service provider has the meaning given by section 87.

87 Carriage service providers (1) For the purposes of this Act, if a person supplies, or proposes to supply, a listed carriage service to the public using:(a) a network unit owned by one or more carriers; or (b) a network unit in relation to which a nominated carrier declaration is in force; the person is a carriage service provider.

carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.